Higgins v. Douglas County District Court et al

Filing 5

MEMORANDUM AND ORDER that this case is dismissed without prejudice. The court will enter judgment by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSEPH W. HIGGINS,
Petitioner,

8:17CV104

vs.
DOUGLAS COUNTY DISTRICT
COURT, and LINCOLN REGIONAL
CENTER,

MEMORANDUM
AND ORDER

Respondents.
This matter is before the court on initial review of Petitioner Joseph W.
Higgins’ (“Higgins”) Petition for Writ of Habeas Corpus (“petition”) filed pursuant
to 28 U.S.C. § 2241. (Filing No. 1.) For the reasons discussed below, the court will
dismiss Higgins’ petition without prejudice.
I. BACKGROUND
Higgins is a state pretrial detainee confined at the Lincoln Regional Center.1
Higgins is apparently charged with crimes in two separate cases in Douglas
County, Nebraska. Condensed and summarized, Higgins alleges that the
Informations in those cases are defective on various grounds. Higgins seeks
immediate release from pretrial custody. (Filing No. 1.)

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Apparently, Higgins is being held at the Lincoln Regional Center because
his public defender has requested a competency evaluation of him. See Filing No.
5, Higgins v. Burns, et al., 8:17CV107 (D. Neb. March 29, 2017).

II. DISCUSSION
“[F]ederal habeas corpus does not lie, absent ‘special circumstances,’ to
adjudicate the merits of an affirmative defense to a state criminal charge prior to a
judgment of conviction by a state court.” Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484, 489 (1973). “Despite the absence of an exhaustion
requirement in the statutory language of section 2241(c)(3), a body of case law has
developed holding that although section 2241 establishes jurisdiction in the federal
courts to consider pre-trial habeas corpus petitions, federal courts should abstain
from the exercise of that jurisdiction if the issues raised in the petition may be
resolved either by trial on the merits in the state court or by other state procedures
available to the petitioner.” Dickerson v. State of La., 816 F.2d 220, 225 (5th Cir.
1987) (citing cases). Relatedly, “In Younger v. Harris, [401 U.S. 37, 43-44
(1971)], the Supreme Court advanced the position that federal courts should refrain
from interfering with pending state judicial proceedings absent extraordinary
circumstances.” Harmon v. City of Kansas City, Mo., 197 F.3d 321, 325 (8th Cir.
1999).
Abstention here is appropriate because Higgins is involved with ongoing
state court criminal proceedings and his allegations do not show that he exhausted
his state court remedies. Higgins may raise any issue with regard to the alleged
defective Informations in state court prior to trial. See Neb. Rev. Stat. § 29-1808
(West) (“A motion to quash may be made in all cases when there is a defect
apparent upon the face of the record, including defects in the form of the
indictment or in the manner in which an offense is charged.”). The court further
finds that Higgins’ assertions do not constitute “special” or “extraordinary”
circumstances that require intervention by the court. See, e.g., Braden, supra
(speedy trial rights); Benson v. Superior Court Dept. of Trial Court of Mass., 663
F.2d 355 (1st Cir. 1981) (double jeopardy). Because it “plainly appears from the
petition . . . that [Higgins] is not entitled to relief,” see Rule 4 of the Rules
Governing Habeas Corpus Cases, the court will dismiss Higgins’ petition without
prejudice.
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III. CERTIFICATE OF APPEALABILITY
Although Higgins petitioned for relief under 28 U.S.C. § 2241, as a state
prisoner he is subject to the provisions governing 28 U.S.C. § 2254 and therefore
must obtain a certificate of appealability. See 28 U.S.C. § 2253; Fed. R. App. P.
22(b)(1). The standards for certificates (1) where the district court reaches the
merits or (2) where the district court rules on procedural grounds are set forth in
Slack v. McDaniel, 529 U.S. 473, 484-485 (2000). The court has applied the
appropriate standard and determined that Higgins is not entitled to a certificate of
appealability.
IT IS THEREFORE ORDERED that:
1.

This case is dismissed without prejudice.

2.

The court will enter judgment by separate document.

Dated this 5th day of May, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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